CORAM

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SUNDAY AKINOLA AKINTAN

M.L UWAIS – JUSTICE, SUPREME COURT

A.G KARIBI-WHYTE – JUSTICE, SUPREME COURT

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PARTIES

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OLATUNBOSUN ISHIAQ APPELLANTS

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SERGEANT FREDRICK EHITORCOMMISSIONER OF POLICE, OGUN STATEATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Applicant/Appellant applied to the High Court of Ogun State under the Fundamental Rights (Enforcement Procedure) Rules, by ex-parte application and same was granted but the trial court ordered that the 1st, 2nd and 3rd Respondents in this appeal, be put on notice, and were accordingly, put on notice with strict compliance under Order 2 rule 1, Fundamental Rights (Enforcement Procedure) Rules. The Appellant sought the following relief, among others; a declaration that the act of torture by beating and hitting by an iron rod and jigger all over his body by the 1st Respondent in the course of his duty, whilst in Police Custody at State Investigation Bureau, Police Headquarters is inhuman and degrading and is a violation of Applicant’s fundamental right to dignity of human person; an award of N5,000,000.00 general damages jointly and severally against all Respondents for the violation of his fundamental right to dignity of human person by torturing, inflicting, inhuman and degrading treatment on applicant which resulted in his developing a mental problem. The 1st, 2nd and 3rd Respondents filed a counter affidavit denying all the claims of the Appellant. After submissions of the learned Counsel to the parties, the learned trial Judge ruled that the Appellant was unable to prove his claims and as result held that, the application lacked merit, and was consequently dismissed. Aggrieved by that decision, the Appellant has filed this appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the learned Judge in view of irreconcilable conflicts in the appellants verifying affidavit and counter affidavit was right to resolve the conflicting affidavit evidence without calling oral evidence to resolve the conflicting facts deposed to by the appellant and first respondent?

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RATIONES DECIDENDI

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DAMAGES, COURT, PRACTICE AND PROCEDURE

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CLAIM FOR DAMAGES- WHETHER COURT CAN AWARD DAMAGES WHERE A CLAIM FOR DAMAGES HAVE BEEN DISMISSED
“Should the learned Judge have evaluated the evidence properly he would have discovered that the amount expended by appellant on medication was not controverted thereby, the items classified as special damages were established and ought to have been granted in favour of appellant as decided in Dakat v. Dashe (1997) 12 NWLR (Pt. 531) page 46 at 53. The learned Judge was therefore, wrong to reject the claims for special damages for non- production of receipts to support the claims when 1st respondent did not controvert them. In any event, having dismissed the claims for damages it is now the law that the learned Judge should have proceeded to award damages he would have awarded as if the claim had succeeded Alhaji Y.A.O. Bello & Ors. v. The Diocesan Synod of Lagos & Ors. (1973) 3 SC 103 at 117 at 145; English Exporters Ltd. v. Ayanda (1973) 3 SC at 56; Iti Ltd. v. Aderemi (1999) 6 SCNJ 41 at 72.”

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COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

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ORAL EVIDENCE – INSTANCE WHEN A COURT IS NOT BOUND TO CALL ORAL EVIDENCE TO RESOLVE ISSUES IN DISPUTE
“The court is not bound to call oral evidence if upon a close examination of the arguments it is revealed that the issue in dispute can quite clearly be resolved on ground of law without the necessity of resorting to hearing evidence then oral evidence was not necessary as in the instant case so decided in Re Otuedon supra; Falobi v. Falobi (1976) 9-10 SC 1; Akinsete v. Akindutire (1966) 1 All NLR 147; Eboh v. Oki (1974) 2 SC 179; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 35.”

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LAW OF EVIDENCE, PRACTICE AND PROCEDURE

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ONUS OF PROOF- ON WHO LIES THE ONUS OF PROVING FACTS ASSERTED IN A CIVIL CASE
“This being a civil case, the onus lies on the party or person who asserts in the instant case, the appellant Anyah v. A.N.N Ltd. (1992) 6 NWLR (Pt. 247) page 332, where the person who asserts failed to prove the case, the case becomes unsustainable Chime v. Chime (1995) 6 NWLR (Pt. 404) page 734. The appellant had the burden to succeed on the strength of his own case and not the weakness of respondents case Whyte v. Jack (1976) 2 NWLR (Pt. 431) page 407 CA.”

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JUDGMENT AND ORDER, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

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AFFIDAVIT EVIDENCE- STATUS OF A DECISION OF COURT BASED ON TWO CONFLICTING AFFIDAVIT EVIDENCE
“In Alhaji A. Gbadamosi & Ors. v. Chief Stephen Ikpoku Alete & Anor. (1998) 12 NWLR (Pt. 578) page 402 at page 410 and 420 the Court of Appeal stated as follows:-
“In the instant appeal looking at the affidavit and counter affidavit from the consideration of the lower court, it was quite obvious and so found by the lower court that such a situation the rule of law is as laid down in the following cases: (1) Chief A.O. Uku & 4 Ors. v. (1) D.E Okumagba & Anor. (for themselves and on behalf of Olodi, Oki and Igbogbadu Families of Okere Warri (3) Shell BP Ltd. (4) Omosohwofa Eboh (for himself and on behalf of Olodo, Emakro, Itifo and Ologbo families of Uduvwun-Urhobo Quarters in Okere, Warri) (1974) 3 SC 35 at 64 – 65 per Sir Udo Udoma that:-
There are authorities for the proposition that as a matter of practice an application which is supported by an affidavit against which there is also a counter affidavit where the facts deposed to in such affidavit are irreconcilably in conflict then in order to resolve such conflicts the Judge ought to invite the parties thereto to call oral evidence, if they wish. Such oral evidence would enable him to test the affidavit evidence and thereby be enabled to resolve such conflicts before acting on such affidavit evidence. See Government of Ashanti v. Adjuah Korkoe & Ors. 4 WACA 83; and Akinsete v. Akindutire (1966) 1 All NLR 147. In the present case the leaned Judge failed to act in terms of this old established practice. We accept the submission by learned Counsel for the appellant that this failure has occasioned a miscarriage of justice. The order of the learned Judge cannot therefore in the circumstance be sustained.
See further Eboh & Anor v. Oki & Ors. (1974) 1 SC 179; 1974 NSCC 26 at 27 per Irikefe J.S.C. (as he then was) wherein it was held that:-
1. “Where there are violent conflicts on material facts in affidavits grounding an application the court of trial is obliged to call for evidence on oath in order to resolve issues of credibility. Further that this (duty) is not diminished whether the parties to the application specifically request for leave to lead evidence on oath or not. Olu-Ibukun & Anor. v. Olu-Ibukun (1974) 2 SC 41 (1974) NSCC 91 per Fatayi-Williams J.S.C. (as he then was) wherein he held that the trial Judge erred in making findings of facts on the conflicting affidavits of both parties without taking oral evidence adopted and followed in Joseph O. Falobi v. Elizabeth O. Falobi (1976) 9 – 10 SC 1.
Recently, by the Court of Appeal, Enugu Division, in Stephen Amiara & 4 Ors. v. Chief Alinchi Alo (1995) 7 NWLR (Pt. 409) at 625 wherein it was held at ratio 3:-
3. A court is expected to resolve conflicting affidavit evidence by calling oral evidence of the deponents to resolve the conflict and where the decision of the trial court is based on the conflicting affidavit such decision will not be allowed to stand, (Falobi v. Falobi (1976) 9 SC 1; Akinsete v. Akindutire 1 All NLR 147 at 148; Eboh v. Oki (1974) 1 SC 179 at 189 – 190.”
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COURT, PRACTICE AND PROCEDURE

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EXERCISE OF JUDICIAL DISCRETION – WHETHER THE EXERCISE OF JUDICIAL DISCRETION IS PRECEDENT FOR SUBSEQUENT CASES
“As it is trite law that the exercise of judicial discretion is not precedent for a subsequent case though the applicable principle of law is the same, if used it shall defeat the exercise of judicial discretion, it boils down that each decision shall turn out on the peculiar circumstances and facts of each case Odusote v. Odusote (1971) 1 All NLR page 219 SC; Kalu Mark & Anor. v. Chief Gabriel Eke (1997) 11 NWLR (pt.529) page 501 CA; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt.135) page 688 at 718 SC.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Fundamental Rights (Enforcement Procedure) Rules, 2009|

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